Cite as U.S. v. Beal, 810 F.2d 574 (6th Cir. 1987)
UNITED STATES of America, Plaintiff-Appellant,
v.
David M. BEAL, Defendant-Appellee.
No. 86-3056.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 21, 1986.
Decided Feb. 5, 1987.
Rehearing and Rehearing En Banc Denied April 27, 1987.
Steven R. Olah, David O. Bauer, Michael T. Rae, Crim. Div.,
U.S. Dept. of Justice, Cleveland, Ohio, Louis M. Fischer (argued)
Lead Counsel, Crim. Div., Washington, D.C., for plaintiff-
appellant.
Gary W. Eisner, Cleveland, Ohio, for defendant-appellee.
Before GUY, Circuit Judge, PECK, Senior Circuit Judge, and
EDGAR, U.S. District Judge.*
JOHN W. PECK, Senior Circuit Judge.
The government appeals from the district court's order
granting the motion of the accused, David Beal, to suppress two .22
caliber pen guns seized from a dresser that was the subject of a
valid search warrant. The pen guns formed the basis for Beal's
indictment for possession of unregistered firearms and firearms not
identified by serial numbers. The sole issue on appeal is whether
the district court erred in determining that the seizure did not
fall within the plain view exception to the Fourth Amendment's
warrant requirement. For reasons stated herein, we affirm.
I.
The evidence adduced at the suppression hearing showed that on
May 27, 1982, Akron police executed a valid search warrant at the
Hells Angels' Motorcycle Club headquarters in Akron, Ohio. In
relevant part objects of the search warrant were items of bedroom
furniture suspected of being stolen property. The police found a
dresser listed in the search warrant in Beal's apartment which was
located on the second floor of the establishment. Because the
search warrant authorized seizure of the dresser, but not its
contents, police officer John Williams began removing personal
effects and clothing, one at a time. While doing so, he came upon
two items which appeared to be fountain pens. Williams noted that
they were "extremely heavy" and therefore were "suspicious." He
showed them to F.B.I. Special Agent Thornton, who was executing a
federal search warrant in an adjoining room. Thornton in turn
asked Special Agent Baraducci of the Bureau of Alcohol, Tobacco and
Firearms to look at the pens. Baraducci, who was not produced to
testify at the suppression hearing, allegedly told Williams and
Thornton that he thought the pens were actually guns and that their
possession would be illegal under federal law. Baraducci never
stated why he thought possession of the pen guns would be illegal.
The pens were then seized. Later lab analysis confirmed that the
"pens" could expel .22 caliber projectiles. Beal was subsequently
indicted on one count of possessing firearms not registered in the
National Firearms Registration and Transfer Record in violation of
26 U.S.C. section 5861(d), and one count of possessing firearms not
identified by serial numbers in violation of 26 U.S.C. section
5861(i).
II.
The plain view doctrine or exception to the Fourth Amendment's
warrant requirement permits officers executing a search warrant to
seize objects outside the scope of the warrant provided three
criteria are met: the initial intrusion by the officers must be
lawful; the discovery of the incriminating evidence must be
inadvertent; and the incriminating nature of the evidence must be
"immediately apparent." Coolidge v. New Hampshire, 403 U.S. 443,
466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). It is undisputed
in this case that the executing officers' initial intrusion pur-
suant to a valid search warrant was lawful and that discovery of
the pen guns was inadvertent. The only issue therefore remaining
is whether the incriminating nature of the pen guns was
"immediately apparent" to the officers so as to justify their
seizure under the plain view doctrine.
Since Coolidge, both the Supreme Court and this court have
considered and further defined the "immediately apparent" prong
of the doctrine. In Texas v. Brown, a plurality opinion, the
Supreme Court stated that Coolidge's "immediately apparent" test
does not require "an unduly high degree of certainty as to the
incriminatory character of evidence," but rather that the seizure
be "presumptively reasonable, assuming that there is probable cause
to associate the property with criminal activity ... (emphasis
added)." 460 U.S. 730, 741-42, 103 S.Ct. 1535 1543, 75 L.Ed.2d 502
(1983) (quoting Payton v. New York, 445 U.S. 573, 587, 100 S.Ct.
1371, 1380, 63 L.Ed.2d 639 (1980)).
This characterization of the "immediately apparent" test in
Brown was consistent with this court's earlier understanding in
United States v. Gray, 484 F.2d 352, 356 (6th Cir.1973), cert.
denied, 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974), and in
United States v. Truitt, 521 F.2d 1174, 1176-77 (6th Cir.1975),
that Coolidge, supra, embodies a probable cause standard. This
court has since stated that Brown "stands for the proposition that
evidence in plain view may be seized where the executing officers
have 'probable cause' to believe that a nexus exists between the
viewed item and criminal activity." United States v. Szymkowiak,
727 F.2d 95, 97 (6th Cir.1984). Probable cause, as so defined, must
be both "immediate" and "apparent" to the officer from the object's
nature. Id. at 98. These requirements avert the danger that
officers will enlarge a specific warrant into a general warrant to
undertake prolonged rummaging. Id.; Brown, 460 U.S. at 748, 103
S.Ct. at 1546 (Stevens, J., concurring).
In determining whether probable cause to connect the seized
item with criminality is apparent, this court has emphasized
certain factors. We have looked for, without holding it to be a
necessary criterion, a nexus between the seized object and the
items particularized in the search warrant. Szymkowiak, 727 F.2d
at 98; Gray, 484 F.2d at 355. See also Jennings v. Rees, 800 F.2d
72, 75 (6th Cir.1986). We have also examined whether the "intrinsic
nature" or appearance of the seized object gives probable cause to
believe that it is associated with criminal activity. United
States v. McLernon, 746 F.2d 1098, 1125 (6th Cir.1984); Szymkowiak,
727 F.2d at 99. The immediacy prong of the test requires that the
executing officers can at the time of discovery of the object on
the facts then available to them determine probable cause of the
object's incriminating nature. Szymkowiak, 727 F.2d at 95. In
other words, to be immediate, probable cause must be "the direct
result of the officer's instantaneous sensory perception of the
object." McLernon, 746 F.2d at 1124.
Despite the government's arguments that Szymkowiak is
distinguishable from the case on appeal, we conclude that
Szymkowiak is controlling in this case. Probable cause to connect
the "pens" with criminality was not apparent. The agents' initial
perceptions "produced only visual images of two 'intrinsically
innocent' items." McLernon, 746 F.2d at 1125. Although Williams
and Thornton were struck by the weight of the "pens," neither con-
nected them with criminal behavior. In fact, Williams admitted at
the suppression hearing that the pens could have been paperweights
and their heaviness did not indicate that they were contraband.
The government, which has the burden of proving the propriety of a
warrantless seizure, see United States v. Matlock, 415 U.S. 164,
177, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974), did not produce
Agent Baraducci at the suppression hearing. Thus, the record
contains only the hearsay statements of Williams and Thornton that
Baraducci simply said without explanation that the pens were guns
and that they were illegal. [footnote 1] Further, there was no
nexus between the pens" and the furniture specified in the search
warrant which sought evidence of stolen property. Moreover,
Thornton knew that Beal was not a felon for whom mere possession of
a weapon would be illegal. See Jennings, 800 F.2d at 75. On the
state of the record, the district court did not err in concluding
that probable cause to associate the pen guns with criminal
activity was not apparent.
Similarly, the district court also correctly concluded that
the immediacy element as lacking. In addition to the above
factors, there was no way, absent disassembly of the pens, that the
agents could immediately discern probable cause at the time of the
pens' discovery to associate the pens with criminal activity; i.e.,
that they were unregistered and lacked serial numbers. The
evidence, which formed the basis for the indictment was, and could
only be, gathered subsequent to the seizure and disassembly.
Although the dissent argues that probable cause existed because
Baraducci no doubt in his experience immediately knew that the pens
were really guns and that their lawful possession was rare, Bara-
ducci's alleged expertise and assessments are mere speculation due
to the government's failure to produce Baraducci as a witness.
In the alternative, the government has argued that Szymkowiak,
supra, is a poorly conceived opinion and one which we should
decline to follow. It is well established in this circuit that
once a panel has ruled on an issue, it becomes the law of the
circuit and may not be overruled by another panel. Messer v.
Curci, No. 85-5626 (6th Cir. Dec. 2, 1986). If Szymkowiak
misreads Brown, supra, and states too strict a test for probable
cause, it is not for this panel to say.
Based on the facts before us, under the teaching of Szymkowiak
the agents lacked probable cause at the time of the seizure to
believe that the "pens" were contraband or otherwise associated
with criminal activity. It may be ironic, as the dissent observes,
that the pen guns' benign outer appearance concealed their deadly
capabilities and helped prevent their possibly criminal nature from
being "immediately apparent." Nonetheless, this circuit has
vigorously adhered to the requirement that probable cause must be
both immediate and apparent.
[T]his standard is mindful of the Supreme Court's constant
warning that any exception to the Fourth Amendment's Warrant
Clause be 'carefully delineated.' Where ... probable cause to
connect the viewed item with criminal behavior is not both
'immediate' and 'apparent,' ... the individual's interests in
retaining possession of property and in maintaining privacy
... and society's interest in lawful enforcement activity ...
are greatly compromised.
Szymkowiak, 727 F.2d at 98.
The order of the district court is AFFIRMED.
FOOTNOTES
* Honorable R. Allan Edgar, United States District Judge for the
Eastern District of Tennessee, sitting by designation.
1. The Federal Rules of Evidence do not govern hearings before a
judge to determine admissibility of evidence and hearsay may be
considered by the judge in admissibility hearings. Matlock, 415
U.S. at 172-75, 94 S.Ct. at 993-95; Fed.R. Evid. 104(a). However,
we note the hearsay nature of the critical evidence in this
proceeding, because it may well have affected the weight the judge
gave to the evidence.
EDGAR, District Judge, dissenting.
The question in this case is whether the law enforcement
officers properly seized the two .22-caliber pen guns under the
"plain view" exception to the fourth amendment's warrant
requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.
2022, 29 L.Ed.2d 564 (1971). Under this Circuit's formulation,
evidence may not be seized under the plain view exception unless
the executing officers show (1) a prior valid intrusion, (2) an
inadvertent discovery, and (3) that the evidence of the unlawful
act was "immediately apparent" to them. United States v.
Szymkowiak, 727 F.2d 95 96 (6th Cir.1984).
As the majority points out, the parties do not dispute that
the first two requirements of the plain view exception are met in
this case, The officers had a valid warrant to search and seize the
dresser. The warrant authorized seizure of the furniture but not
its contents. The pen guns were observed by Officer Williams when
fie placed the contents of a dresser drawer on a bed.
The precise issue here is whether the third Coolidge
requirement is met, i.e., whether it was immediately apparent to
the officers that the pen guns were evidence of unlawful activity.
Because a plain view seizure is made without a warrant, the
"immediately apparent" requirement is merely a formulation of the
requirement that the officers have "probable cause" to seize the
item. Probable cause exists where the facts and circumstances
within the knowledge of the officers and of which they had
reasonably trustworthy information are sufficient within themselves
to warrant a man of reasonable caution in the belief that an
offense has been or is being committed. United States v. Truitt,
521 F.2d 1174, 1177 (6th Cir.1975) (citing Carroll v. United
States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). The
inquiry, therefore, is whether the discovery of the object under
the circumstances "would warrant a police officer of reasonable
caution in believing that an offense has been or is being committed
and that the object is evidence incriminating the accused." Truitt,
521 F.2d at 1177.
This Court in Szymkowiak, citing United States v. Gray, 484
F.2d 352 (6th Cir. 1973), cert. denied, 414 U.S. 1158, 94 S.Ct.
916, 39 L.Ed.2d 110 (1974), and Truitt concluded that the seizing
officers would have probable cause only if the "intrinsic nature"
of the object seized was incriminating. Szymkowiak, 727 F.2d at
99. Otherwise the "immediately apparent" requirement would not be
met because there would be no nexus between the seized items and
the criminal behavior. Id. at 98-99; see also United States v.
McLernon, 746 F.2d 1098, 1125 (6th Cir.1984). [footnote 1]
It is clear that the pen guns found by the officers in this
case were, by their very nature, intrinsically suspicious.
Officer Williams and FBI Agent Thornton thought them suspicious
enough to consult BATF Agent Baraducci. When Agent Baraducci, who
was on the scene, was shown one of the pen guns, his response was,
"I think that is a gun. If it is a gun, it is illegal." [footnote
2] Agent Baraducci's [footnote 3] state of mind upon viewing the
pen guns was the same as that of the officers in Truitt when they
discovered a sawed off shotgun. In both cases, the officers knew
that the lawful possession of the weapon they found "is, in ordi-
nary experience, rare indeed. There is very little legitimate use
for such a weapon." Truitt, 521 F.2d at 1177. It was simply not
necessary for Baraducci to disassemble the pen guns for him to
connect them with criminal activity.
One can certainly say that a pen gun is not an "intrinsically
innocent" object. See Porter v. United States, 335 F.2d 602, 607
(9th Cir.1964), cert. denied, 379 U.S. 983, 8@D S.Ct. 695, 13
L.Ed.2d 574 (1965), cited in Truitt, 521 F.2d at 1177. A pen gun
is innocent only in its outward appearance which purposely conceals
the fact that it can fire deadly .22-caliber bullets. It is ironic
that the majority concludes that this purposeful concealment has
successfully prevented the illegal nature of these pen guns from
being "immediately apparent."
This case is unlike Gray, where officers seized ordinary
looking rifles, copied their serial numbers, and later learned that
they had been stolen. It is also different from Szymkowiak, where
officers seized a firearm and called in a BATF agent from another
location. Upon arriving thirty minutes after the call, the agent
in Szymkowiak did not immediately recognize the firearm's
illegality, and could not make that determination without later
disassembling it. Instead, this case is controlled by Truitt. In
Truitt, the officers, in the execution of a search warrant for
gambling paraphernalia, came upon a sawed off shotgun. Recognizing
that such a weapon is usually not registered and is rarely put to
legitimate use, the officers seized it. Suppression was denied
even though the sawed off shotgun was seized in a sporting goods
store.
It is my belief that the conclusion that the majority reaches
in this case is not necessarily mandated by Szymkowiak because the
facts in the two cases are distinguishable. However, it is also my
view that the Szymkowiak decision, with its emphasis on the words
"immediate" and "apparent," places a higher standard on law
enforcement officials than the fourth amendment requires and is
inconsistent with the Supreme Court's decision in Texas v. Brown,
460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). In that case
a four judge plurality said that:
Decisions of this Court since Coolidge indicate that the use
of the phrase "immediately apparent" was very likely an
unhappy choice of words, since it can be taken to imply that
an unduly high degree of certainty as to the incriminatory
character of the evidence is necessary for an application of
the "plain view" doctrine.
460 U.S. at 741, 103 S.Ct. at 1543.
As the Court frequently has remarked, probable cause is a
flexible, commonsense standard. It merely requires that the
facts available to the officer would "warrant a man of
reasonable caution in the belief," that certain items may be
contraband or stolen property or useful as evidence of a
crime; it does not demand any showing that such a belief be
correct or more likely true than false. A "practical,
nontechnical" probability that incriminating evidence is
involved is all that is required.
460 U.S. at 742, 103 S.Ct. at 1543 (citations omitted).
I would hold that under either the Szymkowiak "immediately
apparent" standard or the Brown "common-sense" standard, the
officers here had probable cause to conclude that possession of the
pen guns was illegal. The decision of the district court should be
REVERSED.
FOOTNOTES
1. The majority also seems to indicate that probable cause requires
a nexus between the seized object and the items particularized in
the search warrant. Even though there is language to the effect in
Szymkowiak, 727 F.2d at 98, there is also language in that same
decision which requires a nexus between the viewed item and
criminal activity. 727 F.2d at 97. In McLernon, a decision issued
after Szymkowiak, Judge Jones, who wrote Szymkowiak, discusses
only a requirement that the police need have probable cause to
believe that the seized item has criminal significance or
evidentiary value. 746 F.2d at 1125. In summary, I believe that
under the case law of this circuit the only nexus required for
application of the "plain view" exception is a nexus between the
seized item and criminal activity or behavior, and not between the
seized items and the items listed in the warrant.
2. As the majority points out, this statement was hearsay. It was,
however, admissible hearsay, and no party has questioned that Agent
Baraducci made the statement.
3. While the pen guns were actually found by Officer Williams, who
showed them to FBI Agent Thornton, who then showed them to
BATF Agent Baraducci who was on the scene while the search was in
progress, it is appropriate to consider the collective knowledge of
all the officers on the scene. The admissibility of this evidence
is not limited by the fortuity of which officer first happened upon
the pen guns. United States v. Johnston, 784 F.2d 416, 420 (1st
Cir.1986); United States v. Newton, 788 F.2d 1392, 1395 (8th
Cir.1986); United States v. Wright, 641 F.2d 602, 606 (8th Cir.),
cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 (1981).